1. The question we have to decide is whether an omission by a Court to comply with the provisions of Section 360 of the Criminal Procedure Code vitiates the trial. The provisions of the section are mandatory, and in the case of two witnesses these provisions were totally disregarded. The test to be applied in deciding 'whether mandatory enactments shall be considered directory only, or obligatory with an implied nullification for disobedience,' is to be found in the judgment of Lord Penzance in the case of Howard v. Boding ton (1877) L. R. 2 P. D. 203, 211., following the conclusion expressed by Lord Campbell, when sitting as Lord Chancellor, in the case of the Liverpool Borough Bank v. Turner (1860) 30 L. J. Ch. 379., to which reference was made by the learned Chief Justice of this Court in Government of Assam v. Sahebulla (1923) I. L. R. 51 Calc. 1: 'In each case you must look to the subject matter, consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.' The general object to be secured by Chapter XXV of the Code, which includes Section 360, is to ensure the accuracy of the record, and also that the accused should know and understand what evidence is given at the trial. The reading over of the evidence to the witness is so essential to the framing of an accurate record that I feel bound to hold that the direction in Section 360 that the evidence shall be read over to the witness is imperative, and not only directory. It follows, therefore, that the omission to read over their evidence to these two witnesses was an illegality which vitiated the trial. It is not necessary to consider whether this omission has in fact caused a failure of justice since Section 537 can have no application.
2. We have reason to believe that the practice which was condemned by Jenkins C. J. in 1909, when delivering his judgment in Jyotish Chandra Makerjee v. Emperor (1909) I. L. R. 36 Calc. 955, 959., still continues. We anticipate that the result of our decision in this case may have serious consequences, but that is no reason why we should fail in our duty to insist that the subordinate Criminal Courts should bold their trials in accordance with the clear provisions of the Code of Criminal Procedure.
3. Before the last amendment of this Code, in the Statement of Objects and Reasons attached to the first Draft Bill (III of 1911), the following passage occurs: 'At present it is believed that Section 360 which requires the Court to read over the evidence of each witness to him in the presence of the accused or his pleader, is not always observed in practice, and occasions unnecessary inconvenience. The amendment' (i.e., Clause 83 of the Bill) provides accordingly for a witness reading over his deposition himself, and further that the deposition need only be read in the presence of the accused if the accused so desires.' In the Bill introduced in the Imperial Legislative Assembly on 20th September 1917 this clause was omitted. This Court, when consulted on the Bill, strongly urged that Section 360 of the Code be amended, as was suggested by Clause 83 of the Bill as originally framed. The Legislature having deliberately decided that the inconvenience caused by the provisions of this section did not justify an alteration of the law on this point is a further reason, if any is necessary, why we should insist on a strict observance of this clear provision of the law.
4. I have had the advantage of reading the judgment my learned brother is about to deliver. As I am in agreement with the views expressed by him I have thought it unnecessary to refer in my judgment to other points that were argued before us.
5. The rule is made absolute. The conviction of the petitioner and the sentence passed on him are set aside, and we direct that he be retried according to law.
6. Provisions corresponding to those contained in Section 360 of Act V of 1898 have been on the Statute Book ever since the Code of Criminal Procedure came into existence in 1861. The section corresponds to the section bearing the same number in Act X of 1882, and to Section 339 of Act X of 1872, and appeared in Act XXV of 1861 as Section 198. In the last mentioned Act there was a provision contained in Section 199 for attaching a memorandum to the evidence of each witness, signed by the Magistrate, and stating that the evidence was read over to the witness in a language which ho under stood, naming the language in which it was explained, and if the fact was so, that the witness had acknowledged the evidence to be correct; and when the evidence had not been taken down by the Magistrate With his own hand, the memorandum was to further state that the evidence was taken down in the presence and hearing of the Magistrate, and under his personal direction and superintendence. This provision was subsequently repealed, and a memorandum is no longer necessary. Under the Codes of 1861 and 1872 the evidence was to be read over, when the personal attendance of the accused was dispensed with in the presence of his agent, while later on for the word 'agent' was substituted the word 'pleader.' Under the Codes of 1861 and 1872, If the evidence was taken down in a language different from that in which it was given, and the witness did not understand the language in which it was taken down, the witness might require the evidence to be interpreted to him in the language in which it was given or in a language which he understood; by the Act of 1882 it was enacted that the evidence so taken, as aforesaid, was to be interpreted in that way, and the necessity of a request on the part of the witness was done away with. In spite of a proposed amendment the law has undergone no alteration in the amendments effected by Act XVIII of 1923.
7. Sub-section (1) of Section 860 provides that the evidence shall be read over to the accused or his pleader and shall, if necessary, be corrected. Evidently such corrections may be made at the instance of the Court itself or of the accused or his pleader or anybody else; there is no restriction on that score. Sub-section (2) deals with corrections or a memorandum to be made where the witness denies the correctness of the record. Sub-section (3) makes a provision so that the witness may understand what has been recorded. If the provisions of this section as well as of Section 361 are strictly observed, the accused as Well as the witness will understand exactly what the evidence has been, and will be in a position to see that a correct record has been made of it. Apart from omissions or inaccuracies that may occur in making the record, a witness, when the evidence is read over to him, may sometimes desire to supplement his answer or modify it or explain the sense of it. Before a deposition is closed a witness should be given an opportunity of explaining and correcting any contradictions it may contain, and only the statement which the witness finally declares to be the true one must be taken to be the statement he intended to make. The accused should not be deprived, of the benefit of this opportunity being given to the witness. Moreover, if any corrections or alterations or additions are to be made, it is only fair that they should be made to the knowledge of the accused, for it may sometimes happen that he may have something to say as to why they should or should not be made. These considerations lead me to dissent from the view that has sometimes been taken to the effect that Section 360 of the Criminal Procedure Code was enacted only for the protection of the witness. That undoubtedly was one of the objects; but the other object, namely, to safeguard the interests of the accused, is equally clear from the wording of the section itself.
8. The wording of the section is mandatory. The object of the provisions being to ensure the accuracy of the record, and also that the accused should know and understand the evidence that is given at the trial, the provisions must be held to be obligatory and not merely directory. In the case Jyotish Chandra Mukerjee v. Emperor (1909) I. L. R. 36 Calc. 955., a Sessions Judge refused to follow the provisions of the section on the ground that it would involve a great waste of time and observed: 'the section seems to me directory and not obligatory. If the witness detects a mistake he can come back and say so. This is the universal practice in Sessions Courts, my experience extending to about six such Courts. Optima est legum interpres consuetudo.' Sir Lawrence Jenkins C. J. observed that he did not agree with the view, for the custom indicated by the learned Judge could Hot alter the plain words of the Act.
9. The failure to comply with the provisions of the section affects both the witness and the accused, as indicated above; and the effect of such failure or non-compliance may be judged from two distinct points of view, viz., as affecting the witness himself, and as affecting the accused.
10. So far as it affects the witness in a subsequent trial of the witness himself arising out of the deposition so recorded, there is some conflict of judicial opinion as regards the effect of a failure to observe the strict provisions of this section. A tendency is seen in some of the rulings to disregard an informality or irregularity which, however patent, is not calculated to throw doubt upon the authenticity of the deposition, especially where the witness has admitted its correctness and has not been prejudiced by the omission to comply strictly with the provisions. In cases, however, where all the guarantees of authenticity which the law prescribes have been violated, there is a consensus of opinion that the deposition will not be admitted in evidence. As instances of the former class may be quoted the cases of Rakhal Chandra Laha v. Emperor (1909) I. L. R. 36 Calc. 808 and Bogra v. Emperor (1910) I. L. R. 34 Mad. 141. As instances of the latter class may be cited the cases of Emperor v. Jogendra Nath Ghose (1914) I. L. R. 42 Calc. 240 and Mohendra Nath Misser v. Emperor (1908) 12 C. W. N. 845. So far as the witness himself is concerned the considerations which arise are of a wholly different character from those which arise in the case of the accused, and they need not be referred to here. Nor again is it profitable to refer to the authorities which deal with the effect of non-compliance with the provisions of Order XVIII, Rule 5 of the Civil Procedure Code.
11. Turning now to the effect of the non-compliance on the proceedings as against the accused, it is obvious in the first place that such non-compliance deprives the accused of a very valuable right which the law secures for him. In requiring that the reading over shall be done in the presence of the accused or his pleader the Legislature obviously intended to give the accused or his pleader an opportunity of checking the correctness of the deposition. That this was the intention has been held by this Court in the case of Emperor v. Jogendra Nath Ghose (1914) I. L. R. 42 Celc. 240. In that case the record had been handed over to a witness to read the deposition after it had been recorded, and this Court observed as follows: 'We are of opinion that this is not a sufficient compliance with the provisions of Section 360. Sub-section (1) of the Criminal Procedure Code, inasmuch as the Sub-section requires that the evidence should be read over in, the presence, that is to say, in the hearing of the accused, in order that the accused should have an opportunity of correcting any mistake in it.' That being so, failure to comply with the provisions may deprive the accused of advantages which may accrue to him by the observance thereof. In the case of Queen v. Issur Raut (1867) 8 W. R. Cr. 63 where, under the Code of 1861, the Magistrate had recorded in English the depositions of witnesses given in vernacular, the witnesses not understanding English, and there was no memorandum such as was required by Section 199 of the Act that the depositions had been explained to the witnesses in a language which they understood, this Court (Kemp and Glover JJ.) observed as follows: 'Such being the case the evidence was not recorded as the law directs. We are also unable to understand how the prisoners could cross-examine witnesses whose evidence in chief was taken down in a language foreign to the accused, and of which no attempt at explanation was made. There has, therefore, been an error in law in the procedure of the case by which the accused have been materially prejudiced, and this Court, acting as a Court of Revision, quashes the trial and sentence, and directs the prisoners to be discharged. We also direct the Sessions Judge to call the attention of the Cantonment Magistrate to the provisions of the Code of Criminal Procedure which relate to the examination of witnesses and accused parties, and to enjoin upon him a strict observation of these pro. visions which are the only guarantee this Court can have that the examination is conducted fairly and 'properly.' In the matter of Mahesh Chandra Banerjee (1870) 4 B. L. R. App. 1,11., Norman J. refrained from expressing any opinion as to the correctness or otherwise of the above decision, observing as follows : I may say, however that I should require to consider the case further before I can fully assent to the ruling on this subject 'in Queen v. Issur Raut (1867) 8 W. B. Cr. 63.' In the case of In re Okhoy Kumar (1880) 7 C. L. R. 393., Garth C. J. and Maclean J. held that Section 339 of Act X of 1872, being for the projection of witnesses only, the fact that witnesses did not understand their depositions when read over although they may not have required them at the time to be interpreted, affords no ground for an application by the accused to set aside a conviction. The case of Queen v. Issur Raut (1867) 8 W. B. Cr. 63 does not appear to have been brought to the notice of the learned Judges who decided the case of In re Okhoy Kumar (1880) 7 C. L. R. 393. Moreover, it would appear that in that case the depositions were in point of fact read over in English, and the pleader for the prisoners and one of the prisoners himself understood English. There was, therefore, a compliance with a portion of Section 339, while the last part of it, which enabled the witnesses, to require the depositions to be translated in a language which they understood, was not complied with; but in fact, there was no such requisition by the witnesses. The language of this part of the section, which corresponded to Sub-section (3) of Section 360 of Act V of 1898, was widely different, as has already been pointed out. The Madras High Court (Collins C. J. and Parker J.) in the case of Re Singiri Eradu (1894) 2 Weir 435. set aside the acquittal of an accused on the ground that the trial was vitiated by a material irregularity when the deposition of each witness was read over to him while the examination of the next witness was proceeding; it being held that under the circumstances the accused could not pay attention to the evidence so read over. This decision was referred to by Miller J. in the case of Bogra v: Emperor (1910) I. L. R. 34 Mad 141., and it was observed as follows: 'It was held by Collins C. J. and Parker J. in Be Singiri Eradu (1894) 2 Weir 435. that the procedure identical with that adopted by the. Sessions Judge in the present case is materially irregular. The deposition taken in the Sessions Court was irregularly taken, and it may be that the conviction based upon such evidence could not be sustained.' In the case of Rakhal Chandra Laha v. Emperor (1909) I. L. R. 36 Calc. 808., where the deposition of a witness was read over in the presence of one out of several accused persons, Jenkins C. J. and Mookerjee J. observed as follows: 'In the case before us, so far at least as one of the original accused persons was concerned, the deposition was read over in the presence of his pleader, and was undoubtedly admissible in evidence as against that accused.' In the case of Jyotish Chandra Mukerjee v. Emperor (1909) I. L. R. 36 Calc. 955. Jenkins C. J. held that the omission to read over the depositions under Section 360 of the Criminal Procedure Code, under the special circumstances of that case, was not fatal. It does not appear from the report what those special circumstances were, but it is evident from the judgment itself that objection on the ground of such non-compliance was taken on behalf of the Crown, and it does not appear that the accused relied upon it as a ground of their appeal.
12. There is, therefore, abundant support for the proposition that the accused is vitally interested in the due compliance of the provisions of Section 360 of the Criminal Procedure Code, and a failure in that respect amounts to a material irregularity which ordinarily must be taken as causing him prejudice. Such a material irregularity, proceeding from the disregard of the express provision of the law is, in my judgment nothing short of an illegality, and as such, not curable under Section 537 of the Criminal Procedure Code. The same view has been taken in the case of Hara Nath Malo v. Sonai Mia Chowdhury (1922) 28 C. W. N. 119. where the depositions were not read over to the witnesses at all on the ground that it was not the practice to do so except in 'Sessions trial cases.'
13. In the case before us the evidence was not read over to the witnesses at all. The depositions of five of the prosecution witnesses bear at their foot the signatures of the witnesses, and we are asked to presume from those signatures alone that the witnesses had actually read the depositions before they put their signatures down; and as regards two of the prosecution witnesses their signatures even do not appear, and it is admitted that, so far as their depositions are concerned, there was no attempt made to comply even with the spirit of the section. There is, therefore, no escape in the present case from the conclusion that the whole trial was conducted in utter disregard of the imperative provisions of the law as contained in Section 360 of the Criminal Procedure Code, and was therefore a nullity.
14. I, accordingly, agree in the order passed by my learned brother that the rule should be made absolute, the conviction of and the sentence passed on the petitioner set aside, and the petitioner tried again in accordance with law.